P L D 1957 Dacca 392 (PLP)

AKBAR, J.‑

This is an application under section 223‑A of the Government of India Act, 1935, as amended by the Government of India (Amendment) Act, 1954, praying for the issue of a Writ in the nature of a mandamus to the Govern ment of East Bengal, and to the Joint Secretary, Finance and Revenue Department of the Government of East Bengal, directing them to cancel or withdraw Notification No. 11273/L. R., dated the 3rd August 1954, and Notification No. 5779/L. R., dated the 5th April 1955, published in the Extraordinary issue of the Dacca Gazette, dated the 28th August 1954, and the 11th April 1955, respectively. By these two Notifications, 64 items of property situated in the districts of Tippera and Noakhali are proposed to be acquired by the Government under the provisions of East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII of 1951). To appreciate the contentions raised on behalf of the petitioner, it is necessary to refer to some of the provisions of the said Act. On the 16th February 1950, the East Bengal Legislative Assembly passed the East Bengal State Acquisition and Tenancy Act, 1950 and it became law on the 16th of May 1951, when the Governor General gave his assent. The long title of the Act is as follows :‑ "An Act to provide for the acquisition by the State of the interests of rent‑receivers, and certain other interests in land in East Bengal, and to define the law relating to tenancies to be held under the State after such acquisition and other matters connected therewith." The preamble of the Act recites :‑ "Whereas it is expedient to provide for the acquisition by the State of the interests of rent receivers, and certain other interests in land in East Bengal, and to define the law relating to tenancies to be held under the State after such acquisition. and other matters connected therewith." The definitions of rent‑receiver, tenure, and encumbrance, which we have got to consider in this application, are set forth in section 2 of the Act. Section 3 (1) (i) provides that the Government may by Notification acquire, with effect from such date as may be specified in the Notification, all interests of a rent receiver in his respective estate, taluk, tenure, hold ing and tenancy. Section 3 (4) mentions the consequences of such vesting of the acquired property. Section 152 read with section 3 (3) confers power upon the Government to make rules to carry out the purposes of the Act, and to prescribe the form of the Notification to be issued thereunder. In exercise of the powers conferred under section 152 and section 3 (3) of the Act, the Government framed rules and prescribed forms with regard to the manner in which the Government should exercise its power under section 3 (1) of the Act. Thereafter, Notification No. 11273/L. R. was published on the 3rd August 1954, in the Extraordinary Dacca Gazette under section 3 (1) of the Act covering 42 items of properties of the petitioner before us. The petitioner there upon filed an objection before the Board of Revenue challeng ing the Notification on the ground that full and sufficient particulars of the properties mentioned in the Schedule had not been given as required under the Act. The Additional Member of the Board of Revenue, who heard the objection, passed the following order :‑ "The Notification be immediately corrected to take effect from the notified date given in the original notification." As the Act did not contemplate acquisition with retrospective effect, the order of the Additional Member, Board of Revenue could not be carried out. The Government then by another Notification No. 570/L. R., dated the 5th April 1955, which was published in the Dacca Gazette Extraordinary on the 11th of April 1955, cancelled Notification No. 11273/L. R., dated the 3rd August 1954, with regard to 33 out of 42 items of property mentioned therein. The Government also published another Notification No. 5779/L. R., dated the 5th April 1955, on the same date, that is the 11th April 1955, acquiring 55 items of properties with effect from the 14th of April 1955. The petitioner then submitted a petition to the Govern ment alleging the following irregularities with regard to Notification No. 5779/L. R. only :‑ (1) that the Notification did not give full particulars which were required under section 3 (1) (i) of the Act and the rules framed thereunder (2) that the items described in the Schedule as kaimi istimrari ijara right were unintelligible and meaningless, and that, in any event, the ijara right was not liable to be acquired under the Act ; and (3) that he being a usufructuary mortgage in respect of item No. 55 of the Schedule, the Government was not entitled to acquire the said property. This petition was rejected on the 4th October 1955. The District Manager of Acquired Estates, Tippera, then asked the Manager of the petitioner to make over possession of all the acquired properties by the 8th of October 1955. The petitioner thereupon filed this application praying for issue of a Writ of mandamus or of like nature to the respondents directing them to withdraw Notifications Nos. 11273‑L. R. and 5779‑L. R. On the 15th of November 1955, a Rule was issued by this Court calling upon the respondents to show cause why the above two Notifications should not be cancelled or withdrawn. The respondents have opposed this application. Their contention is that the Government have complied with the provisions of the Act and the rules framed thereunder in issuing these Notifications, and, as such, the same are not liable to be cancelled. The relevant facts are not in dispute, but the contest centres round the validity of the above Notifications. Mr. Khondkar, appearing in support of the Rule, has attacked Notification No. 5779‑L. R. on the following grounds :‑ (1) that the extent of the petitioner's share in the acquired 55 items has not been stated : and (2) that all the mouzas have not been mentioned in items Nos. 1, 2, 3, 4, 11 to 14, 17, 18, 45 to 48 and 51 to 55 of the Schedule. He has argued that, in view of the provisions of sec tion 3 (1) and section 3 (4) of the Act, all interests of the rent receiver in the estate, taluk, tenure, holding and tenancy must be specified in the Notification; and that this is also clear from column 2 of Form No.1 prescribed under section 3 (3) which clearly lays down that the share is to be mentioned, if known, and the thana and mouza are to be mentioned, as far as known. He has contended that all the above particulars were supplied by the petitioner to the Government, and hence they should have specified the same in the Notification. He has further contended that in any event the mouzas, which have not been mentioned in the Notification, are not liable to be acquired. This proposition is seriously controverted by the respon dents. Mr. Mesbahuddin, the learned advocate for the respondents, has contended that omission to mention the shares of the petitioner or the names of some of the mouzas does not make the Notification bad. He has further contended that in any event this Notification, so far as it relates to the mouzas mentioned therein, is good. Now, section 3 (3) provides: -- "The Notification referred to in subsection (1) or subsection (2) shall be in such form and shall contain such particulars as may be prescribed." Mr. Khondkar has attempted to argue that the word `may' in this subsection means `must'. In view of the fact that the form and particulars have been prescribed, this question is more or less academic. It is now necessary to look into the rules and the form prescribed under the Act. Rule 3 runs thus: "Notifications under section 3 (1) and (2)‑-- The Notification referred to in subsection (1) and sub‑section (2) of section 3 shall be in Form No. I and Form No. II, respectively, appended to these rules, and shall con tain the particulars specified therein." Form No. I, with which we are concerned in this applica tion, is as follows: No date In exercise of the powers conferred by subsection (1) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act No. XXVIII of 1951), it is hereby notified for information of all concerned that the Governor is pleased to acquire, with effect from the . . . . . . . . all interests of the rent‑receiver (s) named in column 1 of the Schedule below in the estate (s) and/or taluk (s) and/or tenure (s), the particulars whereof are given in column 2 of the Schedule against his/her/its/their name (s), including all his/her/its/their interests in all sub‑soil and rights to minerals in such estate (s) and/or taluk (s) and/or tenure (s)‑ Column 2 Particulars of the estate (s) and/or tenure (s). Name and address of the rent-receiver (s). Name and/or number and /or other Description. Extent of share, if known. District(s), Thana (s) and Mouza (s) in which situated as far as known. Other particulars if any. Column 2 of the Schedule mentions that the extent of the share in the estate, toluk and tenure which is going to be acquired is to be given, 'if known', and the names of the district, thana and mouza, wherein the said property is situated, are to be given `as for as known'. Hence, the first question is if non‑mention of shares of the petitioner makes the Notification bad? In other words has the Government in issuing the Notification complied with the requirements of the Act and the rules framed thereunder? The legal position appears to be plain. Where a Statute confers any power, it must be worked out within the Statutory framework. If the Statute confers a right and prescribes a particular mode for. its enforcement, the right must be enforced in that manner. Therefore, the question will, be, if the pro vision for giving particulars as regards shares is imperative or directory. If the provision is merely directory, the neglect of it will not affect the validity of the acquisition. On the contrary, if the provision be regarded as essential to the Act, its omission must be held to be fatal to such acquisition see Maxwell's `Interpretation of Statutes, 9th edition (1946), page

373. The question then arises to which of these two categories do the aforesaid provisions of column 2 belong? In those cases, where a Statute declares the consequences for non‑observance of its provisions, there is no difficulty. In this case, however, there is no such provision. Hence, the following dictum of Lord Campbell in Liverpool Borough Bark v. Turner (1) may be of some help in interpreting the provision :‑ "It has been said that no rule can be laid down for deter mining whether the command is to be considered as a mere direction or instruction involving no invalidating conse quences in its disregard, or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment." What then is the scope and object of this Act? The object and purpose of the Act is to abolish all interests of the rent -receiver. That was the clear enunciation of the policy which was sought to be implemented by provisions of this Act and the rules. Form No. 1 was prescribed under the Act so that (1861) 2 De G F & J 502 (507) the Government may specify the property that it was going to acquire, and (2) the rent‑receiver may know what was being acquired. Further the words in column 2 "the extent of the share, if known" indicate that its compliance was not imperative. In the petition before us, it has not been mentioned what actually is the share of this petitioner in the acquired property. There is also no mention of the extent of his share in the supplementary affidavit which he armed on the 14th November 1955. Mr. Khondkar has submitted that the Government could have found out the share of this peti tioner from the papers submitted by him and from their own records. From the papers before us, it is, however, not possible to infer that the Government was in a position to do so. If it is assumed that the Government could have known of this share by further investigation, even then we think the omission to do so will not make the Notification bad. The learned advocate for the petitioner has failed to show that his client is going to be prejudiced in any way by the non‑mention of his share. Hence, the comment of Mr. Khondkar that the order was mala fide has no basis for it. For the reasons stated above, we are of opinion that the provision that "the extent of share, if known", to be mentioned in column 2 of Form No. 1 is a mere direction, and, as such, the disregard of the same will not affect the validity of the Notification. Next, we take up the question of the alleged omission of some of the mauzas in column

2. Mr. Khondkar has not shown that the Government has even attempted to take possession of the mauzas other than those mentioned in the Notification. In these circumstances, it will be rather premature to say that this Notification is bad, because some other mauzas have not been mentioned. We are, therefore, of opinion that the necessary particulars of the properties proposed to be acquired by the Government have been given in Notification No. 5779 L. R. as required under the Act and the rules. It has been next urged that the ijara right is not liable to be acquired by the Government under this Act. Mr. Khondkar has argued that from the heading of Notification No. 5779‑L. R. it appears that the Government propose to acquire only the estate, taluk and tenure, and, as ijara does not come under any of these heads, the Government is not entitled to acquire the same. Here, we may mention that by an Amendment (Act VI of 1952) the words `holdings or tenancies were added after estates, taluks and tenures occurring in section 3 (1) of the Act; but the Government omitted to mention `holdings or tenancies' in the Notification. Hence, Mr. Khondkar has asserted that we are not entitled to see whether the ijara comes under `holding or tenancy'. He has contended that ijara is not a tenure as defined in this Act. On the other hand, Mr. Mesbahuddin has contended that 1jara is a tenure, and, as such, the Government is entitled to acquire the same. Section 2 (28) defines tenure as follows: "Tenure means the interest of a tenure‑holder or an under‑tenure‑holder." This Act, however, does not define `tenure‑holder'. Section 2 (31) recites: "All words and expressions used in Parts I, 11, 111 and IV of this Act, but not defined in this Act, and used in the Bengal Tenancy Act, 1885, or in the Sylhet Tenancy Act, 1936, have the same meanings as in those Acts in the respective areas to which those Acts apply." Therefore, we are entitled to look to section 5 of the Tenancy Act for definition of `tenure holder' which is as follows: "Tenure‑holder' means primarily a person who has acquired from a proprietor or from another tenure‑holder a right to bold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it, and includes also the successors‑in‑interest of persons who have acquired such a right." From the above definition, it is clear that ijaradar is a tenure‑holder. In this connection, reference may be made to the following observations of their Lordships of the Judicial Committee in Raja Prafulla Nath Tagore v. Santoosh Kumar Das and another (45 C W N 309): " ..the process of creating derivative tenures is carried to great lengths in the District of Bakarganj, but the relation between the holder of a tenure and the holder of a sub‑tenure immediately subordinate to it is that of landlord and tenant. It is not correctly represented as that of a person entitled to receive rent from another by reason of an assignment from a person previously entitled to receive such rent. The sub‑infatuation proceeds upon the basis that each interest is a right to hold land. The definition of 'tenure‑holder' in section 5 of the Bengal Tenancy Act makes this plain, and it is true even in the case of an ijaradar whose interest is often interposed between a tenure and its sub‑tenure. Thus section 22 (3) of the Act speaks of a person holding land as an ijaradar or farmer of rents though naturally the interposition of a tenure cannot in any way diminish the rights of the holder of the sub‑tenure." The above clearly indicates that their Lordships treated the ijaradar in the same category as a tenure‑holder. Mr. Kondkar has, however, relied on the decision in Munshi Alauddin Ahmed Choudhury and others v. Tamizuddin Ahmed (41 C W N 1001), to show that ijara may also be for non‑agricultural land. He has, therefore, argued that the Executive Officer was not competent to decide whether the ijara was in respect of agricultural or non‑agricultural land. We do not see any force in this contention. It is well‑settled that where an authority exercising administrative power under a Statute Acts within the four corners of the Statute, and does not exceed or abuse) its power, the Court has no power to interfere with it. The learned Advocate has failed to show that the authority has in any way abused its power. Further, it is nowhere mentioned in the petition that the acquired ijara is in respect of non agricultural land, and, therefore, there is really no basis for such an argument. We would, however, like to observe that in such cases the Department concerned has merely to exercise its specialized administrative experience and ability to decide as to what properties this Act applies, and this they have done. Hence, by no stretch of imagination, it could be said that there was an abdication of legislative power in this case. We think that in view of section 5 of the Bengal Tenancy Act, the Government was justified in treating an ijaradar as a tenure‑holder. Furthermore, as stated above, there is nothing before us from which we could infer that the ijara was only for farming of rent, nor has this fact been stated in the application. In these circumstances, it would be difficult to hold that this Act is not applicable to the ijaras which are proposed to be acquired by this Notification. Here we may mention that while we were delivering judg ment, the learned Advocate for the petitioner asked permis sion to file a copy of the ijara deed, and we have given him permission to move it after the delivery of the judgment. If it is assumed that the ijara does not come within the definition of section 5 of the Tenancy Act, even then we think it can always come under the definition of `tenancy' or holding. Mr. Khondkar has pointed out that in the Noti fications the words "holdings or tenancies" have not been mentioned. This may be a defect; but that does not mean that such defect is sufficient to vitiate the entire proceeding or to entitle the petitioner to the relief prayed for. It has been repeatedly held that the powers to issue a Writ of mandamus under provisions similar to section 223‑A of the Government of India Act are of an extraordinary nature, to be resorted to in exceptional cases of an urgent nature where adequate relief could not be got otherwise. Further, the discretionary relief can and ought to be refused if the defect is technical, and has not resulted in any injustice. Here the defect, if any, is merely technical, and has no relation to equity and justice, and so, on this ground also, we overrule this contention. Mr. Khondkar has next contended that at any rate item No. 55 of Notification No. 5779‑L. R. in respect of which the petitioner is a mere mortgage cannot be acquired under this Act. He has argued that this mortgage's interest cannot possibly fall under the definition of estate, taluk, tenure, holding or tenancy. On the other hand, Mr. Mesbahuddin has rather faintly suggested that a usufructuary mortgage can be treated as a rent‑receiver under this Act. We have really found it difficult to appreciate this contention of Mr. Mesbahuddin section 2 (2) defines "encumbrance" as: "`encumbrance', in relation to any estate, tenure, holding, tenancy or land, means any mortgage, charge, lien, sub tenancy, easement or other right or interest created by the holder thereof on such estate, tenure, holding, tenancy or land or in limitation of his own interest therein." Section 2 (23) defines rent‑receiver as "`rent‑receiver' means a proprietor or a tenure‑holder, and includes a raiyat, an under‑raiyat or a non‑agricultural tenant whose land has been let out, and also the immediate landlord of a person who holds any land free of rent in consideration of some service to be rendered, but does not ‑include a person in respect of such of his lands, as has been let out, together with any building standing thereon and necessary adjuncts thereto, otherwise than in perpetuity." Section 3 (1) lays down what interests of rent receivers can be acquired. Further, section 3 (4) clearly lays down that the interests shall vest absolutely in the Government free from any encumbrance. The above sections leave no room for doubt that the interests of a usufructuary mortgage cannot be acquired under this Act. The mere fact that a E mortgage is to possession of the mortgaged property by realizing rent there from will not bring him within the four corners o f this Act. In this view of the matter, we think that the Government is not entitled to acquire item No. 55 of Notification No. 5779‑L. R. Some argument has been advanced on the question whether Notification No. 5779‑L. R. was issued prior to the cancellation of Notification No. 11273‑L. R. with regard to 33 items of property. The said 33 cancelled items have been included in the subsequent Notification No. 5779‑L. R. From the fact that the Notification canceling Notification No. 11273‑L. R. has been numbered as 5780, Mr. Khondkar has asked us to infer that the order for issue of Notification No. 5779‑L. R. must have been passed prior to the order for issue of Notification No. 5780. We are, however, unable to accept this suggestion. Notification No. 5780 canceling 33 items of previous Notification No. 11273‑L. R. took effect from the date it was published, this is 11th Aril 1955. Now, though Notification No. 5779‑L. R. was published on the 11th April 1955, it was clearly mentioned therein that it would take effect from the 14th April 1955. Hence, it cannot be said that this Notification took effect prior to the cancellation of the first Notification No. 11273‑L. R. These are all the arguments that have been advanced by Mr. Khondkar in attacking Notification No. 5779‑L. R. Now we take up Notification No. 11273‑L. R., dated the 3rd August 1954. As soon as this Notification was published, the petitioner challenged the Notification, and the Additional Member, Board of Revenue, who heard the application, ordered for correction of the said Notification. Later, Notification No. 11273‑L. R. was cancelled with regard to 33 out of 42 items of property mentioned therein. The petitioner thereafter did not take any further action with regard to the 9 items of Notification No. 11273‑L. R. which the Government proposed to acquire. When, subsequently, by Notification No. 5779‑L. R., the properties which were originally included in the first Notification No. 11273‑L. R. plus some other properties were acquired by the Government, the petitioner filed an application to the Government challenging the said Notification No. 5779‑L. R. only. But even then, he did not raise any objection regarding 9 items of the previous Notification No. 11273‑L. R. In these circumstances, we think he is not entitled to ask for a Writ for cancellation of Notification No. 11273‑L. R. so far as the said 9 items of property are concerned. We may, however, mention that the petitioner is challenging the propriety of the acquisition of those 9 items on the ground that the shares have not been correctly specified, and that all the mouzas have not been mentioned therein. We have, however, dealt with these objections while dealing with Notification No. 5779‑L. R. In conclusion, we would like to observe that Mr. Khondkar attempted to challenge the validity of the Act and the rules; but as he had not raised these questions before the Government or in the application before us, we did not allow him to do so. In support of his contention that he is entitled to challenge at this stage the validity of the Act and the rules, he has relied on the case of Rabindranath Chakravarty v. The State of West Bengal and another (58 C W N 203). In the above case, there was no demand of justice before filing of an application under Article 226 of the Constitution of India. The Court, however, found that when the respon dent went to take possession, the petitioner offered resistance and asserted his demand for justice. Having regard to the facts in that case, the Court came to the conclusion that in substance there was a demand for justice. Hence, relying on the case of Commissioner of Police, Bombay v. Gordhandas Bhanji (1952 S C A 53), the Court held that there was sufficient demand of justice before filing of the application. Now, here the facts are that the petitioner challenged the first Notification No. 11273‑L. R. whereby 42 items of properties were acquired by the Government. Subsequently, it was cancelled only with regard to 33 items mentioned therein. Thereafter, he did not raise any objection regarding the said items. When Notification No. 5779‑L. R. was issued covering 55 items of property, he sent a petition to the Government challenging the said Notification on the grounds ‑(a) that full particulars of the said properties were not given in accordance with the rules ; (b) that the ijara right was not liable to be acquired under the Act ; and (c) that in respect of item No. 55, he was a mortgage. He, however, did not challenge the validity of the Act and the rules. In the application before us, he has also not challenged the validity of the Act and the rules. Hence, the question is : Can he be allowed to challenge the validity of the Act and the rules ? In this connection, reference may be made to the following passage of Halsbury's Laws of England, Second edition Volume 9, page 771: "As a general rule, the Writ will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that such demand was met by a refusal . . . . . ." Similarly, the following observations of Lord Atkinson in Bank of Bombay v. Suleman Somji (1 L R 32 Bom. 466 (476)) is very pertinent: "This suit is in truth in its nature, though not its form, somewhat of the character of an application for a Writ of mandamus, and the principles regulating the issue of that prerogative Writ should, their Lordships think, apply to a great extent to the granting of the relief prayed for in such a suit as this. One of these principles is this, that the Writ will not be allowed to issue unless the applicant shows clearly that he has the specific legal right to enforce which he asks for the interference of the Court, that he has claimed to exercise that right and none other, and that his claim has been refused." In view of the above authorities, we are of opinion that the petitioner is not entitled to raise the question of validity of the Act and the rules for the first time in this Court. His grievance was that the Government had not complied with the provisions of the law and that he required the assistance of the Court to carry out the provisions of the law on the assumption that those provisions were valid. He, therefore, cannot be allowed to make a new case at this stage. On a consideration of the relevant provisions of the Act and the rules, and the arguments advanced before us, we are of opinion that the petitioner has failed to satisfy us that Notification No. 11273‑L. R. relating to 9 items of property and Notification No. 5779‑L. R., so far as it relates to items Nos. 1 to 54 are bad. We, however, think that under the provisions of the East Bengal State Acquisition and Tenancy Act, 1950; the Government is not entitled to acquire the mortgages interest of this petitioner in item No. 55 of Notification No. 5779‑L. R. We, therefore, order that a Writ of mandamus do issue directing the respondents to forbear from giving effect to Notification No. 5779‑L. R. so far as it relates to item No. 55 of the Schedule of the said Notification. The Rule is disposed of accordingly. Each party will bear its own costs of this application. The application filed by the petitioner may be kept in the record. RAHMAN. J.‑

I agree. A. H Order accordingly.